R NARAYANASWAMY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) CRIMINAL Appeal No. 716/2009 is filed by appellant (hereinafter referred to as 'accused') against the judgment of conviction for offences punishable under sections 7 and 13(1)(d) r/w section 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act') in Special Case No. 19/2008, on the file of District and Sessions Judge at Ramanagara. The appellant was tried for aforestated offences. The learned Special Judge convicted accused for offences punishable under sections 7 and 13(1)(d) r/w section 13(2) of the Act. The learned Special Judge sentenced accused to undergo simple imprisonment for a period of six months and pay fine of Rs. 20,000/ -, in default to undergo simple imprisonment for a period of four months. The State being aggrieved by the inadequacy of sentence has filed Criminal Appeal No. 142/2010. I have heard Sri P. Usman, learned counsel for accused and Smt. T.M. Gayathri, learned counsel for Lokayukta Police.

(2.) THE case of prosecution in brief is as follows: - PW2 -Narasingh was working as Head Master of Higher Primary School at Vajarahalli, Magadi Taluk. PW2 retired from service on 31.07.2002. On retirement, PW2 was entitled to receive pensionary benefits viz. Provident Fund, DCRG and commutation. On 17.10.2002, PW2 had received intimation of payment of DCRG amount of Rs. 1,38,600/ - and commutation amount of Rs. 1,75,728/ - from office of Accountant General. PW2 was informed that DCRG bill for a sum of Rs. 1,38,600/ - and commutation amount of Rs. 1,75,728/ - has been sent to Sub -Treasury at Magadi. The accused was the officer of Sub -Treasury at Magadi. On 21.10.2002, PW2 submitted bills in required form to Sub -Treasury at Magadi for payment of DCRG and commutation amount as aforestated. On 09.11.2002, PW2 had gone to the Office of Sub -Treasury at Magadi and requested accused to release DCRG and commutation amount. The accused in order to perform the above official acts in favour of PW2, demanded a sum of Rs. 5,000/ - as illegal gratification from PW2 and asked PW2 to come on 11.11.2002. PW2 did not want to bribe accused. On 11.11.2002, PW2 visited the office of Lokayukta police at Bangalore Rural District and submitted first information as per Ex. P.2, on the basis of which PW7 -N.T. Ashwath Narayana, the then Police Inspector of Lokayukta registered Crime No. 11/2002 against accused for offences punishable under sections 7 and 13(1)(d) r/w section 13(2) of the Act and submitted first information report in a sealed cover to jurisdictional Special Judge on the same day. PW7 sent requisition to the Director of Women and Child Welfare Department and the Commissioner, Transport Department to secure official witnesses namely PW3 -Chennabasavaiah and PW4 -Shivanna Gowda as witnesses for trap. PW2 produced ten currency notes of Rs. 500/ - denomination before PW7, to which PW7 smeared phenolphthalein powder. PW7 explained the contents of complaint and demonstrated phenolphthalein test to witnesses. As instructed by PW7, one of the staff members namely Ramachandra put tainted currency notes into shirt pocket of PW2 and instructed PW2 to give tainted currency notes to accused (Officer of Sub -Treasury at Magadi) if bribe is demanded by accused. PW7 collected resultant hand wash of Ramachandra in a separate bottle. Thereafter, raiding party consisting of PW2 to PW4, PW7 and other staff members of Lokayuktha Police reached the office of Sub -Treasury at Magadi at 2 p.m., and jeep was stopped at a distance. PW7 instructed PW2 to give tainted currency notes to accused, if bribe amount is demanded by him and asked PW4 to accompany PW2 as a shadow witness to observe as to what would transpire between accused and PW2. PW2 was instructed to give a signal in case bribe amount was demanded and accepted by accused. PW2 met accused and enquired him about payment of DCRG and commutation amount and also about pension papers. The accused demanded and accepted illegal gratification of Rs. 5,000/ - from PW2, which was also observed by PW4 (shadow witness). Thereafter, PW2 came outside the chamber of accused and gave pre -determined signal to PW7. PW7 entered the chamber of accused and apprehended him and held his hands and recovered tainted currency notes from his shirt pocket. The hands of accused were washed in a bowl containing sodium carbonate solution. The resultant hand wash turned into pink colour and resultant solution was collected in two separate bottles and the same were sealed. PW7 collected DCRG, pension papers and commutation papers from the Office of accused from PW1 -P.N. Chandrashekaraiah, who was working as a Second Division Assistant in Sub -Treasury at Magadi. The accused gave a written statement as per Ex. P.5. PW7 recorded the statements of witnesses, seized incriminating articles, completed investigation and submitted final report against accused for aforestated offences to learned Special Judge on 27.12.2003. The learned Special Judge took cognizance of offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Act on 30.12.2003 and issued summons to accused for his appearance on 27.01.2004. In the meanwhile, Disciplinary Inquiry was initiated against accused and accused was dismissed from service in terms of Government. Order bearing No. FD 264 Aakhayi 87, Bangalore, dated 19.07.2003. As accused had been dismissed from service before final report was filed on 27.12.2003, Investigating Officer had not obtained previous sanction from the competent Authority to prosecute accused.

(3.) THE learned Special Judge on appreciation of evidence has held accused guilty of offences punishable under sections 7 and 13(1)(d) r/w 13(2) of the Act. However, while passing sentence, learned Special Judge has sentenced accused to undergo simple imprisonment for a period of six months and pay fine of Rs. 20,000/ -, in default to undergo simple imprisonment for a period of four months for an offence punishable under section 7 r/w section 13(1)(d) of the Act. It is the grievance of State that learned Special Judge has not imposed minimum sentence of imprisonment provided for an offence punishable under section 13(1)(d) r/w section 13(2) of the Act.